Friday, November 01, 2002

[Eugene Volokh,
7:04 PM]WHY THE FBI DIDN'T STOP 9/11: Heather MacDonald, writing in the City Journal, argues that the main reason was the misguided attempt to separate national security surveillance from criminal prosecution (the so-called "Wall" between traditional prosecutors and intelligence gathering; it was misstatements related to this Wall that led the Foreign Intelligence Surveillance Court to issue its blistering opinion a few months ago). She also more broadly condemns what she sees as a misguided and excessive concern about civil liberties violations, violations that she thinks are mostly phantoms.

I'm not sure that she's entirely right -- I'm probably somewhat more suspicious of government power in this area than she is -- but the piece seems to be much worth reading and considering.

[Eugene Volokh,
4:44 PM]
MORE WORDING PEEVES: I see this time and again in legal writing -- "individual." "Individuals should be allowed to . . . ." "The law prohibits individuals from . . . ."

It's people, folks, people! One person, two people. If you're trying to distinguish individuals from corporations, or to stress that certain rights belong to individuals and not communities, that's fine. But if you're not (and most of the uses I've seen have nothing to do with those distinctions), go with two syllables instead of five. Even if you're lawyers.

[Eugene Volokh,
4:37 PM]
AN EDITING SUGGESTION THAT I RESPECTFULLY DECLINE: A proposed change of "this scenario doesn't require us to assume that . . ." to "this scenario doesn't necessitate an assumption that . . . ." No nounification! is my slogan in life. That, and "require" is almost always better than "necessitate."

[Eugene Volokh,
4:15 PM]
JUDGE ORDERS BOTH PARENTS NOT TO "ALLOW[] ANY PERSON, INCLUDING THEMSELVES, TO SMOKE TOBACCO IN THE PRESENCE OF [THEIR CHILD]": I'm surprised that I've seen so little coverage of this incident -- a LEXIS search uncovered just four stories, three in Ohio papers and one in a Canadian paper. On August 27, Judge William Chinnock of the Ohio Court of Common Pleas issued an order barring parents "under penalty from contempt from allowing any person, including themselves, to smoke tobacco in the presence of" their child (In re Julie Anne, No. 97-PR-755, 2002 WL 2022117).

The order came in a divorce case, but neither party asked for it -- the judge issued it simply on his own authority. Previous cases have considered second-hand smoke in choosing which parent to give custody to, but there at least the situation was somewhat different: The court has to decide whom to give custody to, and in such decisions many factors play a role, including behavior that the court generally can't (and doesn't) prohibit outright. What's more, if one parent insists that the children not be exposed to smoke and the other disagrees, then the court's custody decision may be seen simply as helping effectuate one or another parent's decision, rather than completely superseding the parents' judgment with the judge's own.

This case, though, is different; according to the Hamilton Spectator, Sept. 14, 2002, this is "the only known example of a court independently raising the issue of second-hand smoke." The judge isn't trying to effectuate one parent's preferences; he's not choosing which home would be better for the child; he's ordering both parents, on penalty of possible jail time (that's what a contempt of court citation can lead to), not to allow any smoking around the child.

Readers of this blog are probably aware that I'm not a parental rights maximalist; I think that at least in principle, we have the right to prevent parents from mistreating their children if the mistreatment is severe enough. But this really does seem fairly troublesome -- after all, if a judge may do this to divorcing parents, why couldn't he do the same to any set of parents? Why couldn't he order parents to put their child on a diet (not just a morbidly obese child, but also a child who's just fat enough that we have reason to think that the child may suffer from it)? Or to make their child exercise? I suspect that others will view the decision as more outrageous than I do, but I still find it troubling. And I do think that this helps show that people were right to predict that more modest smoking restrictions would lead us down the slippery slope to these more severe ones.

According to the UCLA law library, the judge just withdrew the opinion today (Nov. 1), the very day that the decision was noted on WEST's Law Bulletin (the online service that I use to find interesting cases like this); so perhaps he'll reconsider. But the case seems to me to bear watching.

[Eugene Volokh,
2:40 PM]
"IF MY GRANDMOTHER HAD WHEELS, SHE'D BE A TROLLEY CAR." An e-mail I got quoted Andrea Shearman, the mother of one of the people murdered by the terrorists in Bali, as saying "If men had babies they would not create bombs." (I then confirmed the quote in the Daily Telegraph, Oct. 17, 2002.)

I have nothing against Ms. Shearman's statement, which I think might well be accurate in its own way: The gender that has babies is much less violent than the other gender, and is apparently that way in all human societies.

But I've always wondered at the implications that some draw from this point. If men had babies, they'd be women; the first definition of "female" in my New Shorter Oxford is essentially "the sex which can bear offspring or produce eggs," and this is the way people generally use the term. For some animals, this raises all sorts of complicated questions, but for most of the animals with which we're familiar, that's what "female" colloquially means. So if men had babies, they might not create bombs -- but then the other gender would be the bombers.

What if both men and women bore babies? I'm not an expert on evolutionary psychology, but my limited reading on the subject suggests that there are powerful evolutionary and biological reasons why the human gender that bears children is less violent than the other gender. To ask what would happen if this fundamental fact of biology were different, and had been different throughout human history, is like asking what the world would have been like if 2+2 were 5. It is the nature of humans, not just in some metaphysical sense but in a very real one, that men and women have certain biological differences. The ability to bear children is one; average size is another; the propensity to commit violence is a third. (I suppose one can ask what would happen in the long run if biological advances allowed us to impregnate men, and men were impregnated at the same rate as women, but I suspect that it would take many generations for this to affect human behavior in a deep way.)

The caption of this post ("if my grandmother had wheels, she'd be a trolley car") is a line that I've heard used to refer to hypotheticals that are so counterfactual that they can provide only limited enlightenment -- the world of the hypothetical is so different from our world that it's not clear what we can infer from thinking about such a fictional place. (Useless aside: I've also seen versions that call her a wagon, or a bicycle.) "If men had babies" may be a powerful way for Ms. Shearman to express her rage at the terrorists, who quite likely were largely or entirely male, and as I said I surely don't begrudge her that. But some people turn that emotional response into a substantive claim about how the world would be -- and such a claim strikes me as being in the wheeled grandmother category.

UPDATE: Readers Henry Cohen and Norman Heath pointed out that the line about the trolley car is sometimes given as "If my aunt had balls, she'd be my uncle" -- even more apt.

[Eugene Volokh,
12:22 PM]
"HOW APPEALLING" GETS RESULTS: Check out How Appealing on how a blog post noting an error in a Fifth Circuit opinion led to the opinion being promptly corrected. The authoring judge, it turns out, is a regular reader of Howard Bashman's blog. The story also hit Wired News, giving Bashman -- and, I hope, blogging generally -- still more well-deserved recognition. (Thanks to reader Randy Hudson for pointing this out to me.)

[Eugene Volokh,
9:53 AM]
A RESTRAINING ORDER. A 911 CALL. A SHOTGUN. WHICH WOULD YOU TRUST? As I've said before, I think anecdotes can't take us very far (at least as a logical matter) in the gun control debates; in a nation of 275 million people, there'll be an anecdote supporting any theory.

But anecdotes are often needed to give a human face to the numbers. It's one thing to say that there are anywhere from 100,000 to 2.5 million defensive gun uses a year (the surveys yield very different results, and while I'm sure that the 100,000 number is too low -- there are serious problems with that survey -- I'm not sure that the 2.5 million number is right, either; but that's a story for another day). It's another to say that, and then give a specific example. And especially since the media often omits mention of a defensive gun use when covering a crime story (consider the coverage of the Appalachian School of Law shootings early this year), it's sometimes helpful to bring up such examples.

So here's one, which to its credit the L.A. Times covered quite thoroughly (emphasis added):

The former husband had shown up at the door so many times before that the family bought a pistol. And finally a shotgun.

Early Thursday morning, just days after his latest arrest for domestic violence, Eric Christopher Kiefer, 35, was shot to death when he broke into the Laguna Hills home where his former wife lives, tried to force his daughter to drink an unidentified substance and attacked his in-laws with a homemade hatchet. . . .

Police said Dana Kiefer's father fired two shots from a pistol at his former son-in-law, missing both times.

Police said they had been called to the home at least 10 times in the last two years, citing Kiefer for offenses such as trespassing, disturbing the peace and being under the influence of methamphetamine.

About 1 a.m. Thursday, police said, Kiefer forced his way into the home, woke up his 10-year-old daughter and tried to force her to drink what police described as a caustic liquid.

"Oh, my God! Oh, my God!" Dana Kiefer screamed to police during the attack, according to a recording of her 911 call. "Hurry, get over here! He's here again! He's getting my daughter!"

The girl's grandparents, Charles and Barbara Howlett, 66 and 63, came to the child's assistance, but Kiefer attacked the couple with a homemade hatchet, said Jim Amormino, spokesman for the Orange County Sheriff's Department.

Police said Kiefer also attacked his ex-wife's boyfriend, Mathew Dyer, 30, when he tried to wrest the hatchet from him.

Police said the grandfather grabbed a .38-caliber handgun and fired twice in Kiefer's direction, both shots missing. Dyer then ran into a bedroom, got the shotgun and fired twice, hitting Kiefer once in the neck. . . .

According to a restraining order granted Oct. 16 -- five days after Kiefer showed up intoxicated at the Laguna Hills home and assaulted his former wife and her boyfriend -- Kiefer was under court order to stay away from his ex-wife, his daughter, his in-laws and the boyfriend. . . .

After all, if a non-black is going to dress up to a costume party as a black, he has to use something like blackface (or perhaps a mask, but what would be any different about that?). Is it really per se offensive, racist, immoral, or what have you for non-blacks to dress up as blacks to a costume party? (I assume that this was indeed a costume party, since it's unlikely that this was the only group who came dressed up.) Or for non-Hasids to dress up as a Hasidic Jew? Or for people to dress up as nuns or priests (even in areas where historically there has been hostility to Catholicism)?

Matters might be different if the costume intentionally exaggerates stereotypical black or Jewish features, at least beyond the normal exaggeration present in any costume party outfit. But I saw no mention of this in the news story, which said only that "white [fraternity] members painted their faces to look like the black pop group The Jackson Five" and were "dressed as the Jackson siblings." (And before people start claiming that this is inconsistent with my position about pirates, let me just point out the difference between costume parties and real life, or even the less real-life world of sports, where team names tend to be a mark of some degree of admiration, except when they are geographically related, e.g., Ducks.)

Now this issue is likely more complex than the First Amendment one -- there are, and there should be, more gray areas and uncertainties in good manners than in constitutional law. But it still seems to me that the case for the categorical impropriety of blackface at costume parties has yet to be fully made.

[Eugene Volokh,
8:52 AM]
PEOPLE WHO KNOW TOO MUCH HISTORY ARE DOOMED TO REPEAT WEIRD ARGUMENTS: John Rosenberg quotes some particularly odd arguments that a historian has recently been making with regard to war on Iraq.

[Eugene Volokh,
8:51 AM]
THINGS THAT ANNOY ME. What is it with all the streets, teams, and such that are named after pirates? There's a Buccaneer in L.A. (in a set of nautical-named streets by the beach); there are of course the Tampa Bay Buccanneers, the Pittsburgh Pirates, and so on. No-one would want to say "I live on Rapist Road, right by Murderer Boulevard," but somehow the pirates -- who were robbers, murderers, and rapists -- are cool. I think I know what's going on: Enough time has passed that people have set aside the reality of piracy, and substituted for it some romantic glow. But that this glorification of criminals happens doesn't make it right.

UPDATE: A reader writes:

Just goes to prove the adage that "Comedy=Tragedy+Time." "Yeah, but besides that, Mrs. Lincoln, what did you think of the play?" is funny. "Yeah, but besides that, Mrs. King, how did you like Memphis?" is not.

Good point (though my objection is to non-comedic uses of pirates).

ANOTHER UPDATE: I realize that some captures on the high seas were undertaken by privateers -- captains who were authorized by governments to capture hostile shipping as part of a war. (Letters of marque and reprisal were one means of doing this.) At least in theory, and I think in practice among some countries at some times, these sorts of captures were less morally problematic; deadly force was of course used to effectuate them, but the passengers, crew, and officers of the captured ship were not mistreated. Privateering was thus more akin to warfare than to out-and-out piracy; I do not have the same objection to it that I do to piracy, but I highly doubt that conventional uses of "pirate," "buccaneer," and the like refer to it. I should have mentioned this at the outset, but neglected to do so; thanks to reader George Byrd for reminding me.

STILL ANOTHER UPDATE: Fellow lawprof Brannon Denning writes:

Shiver me timbers, matey. Why are you so down on pirates? Didn't you know that they were dissenters from an aristocratic, European, class-based, exploitative economic culture? They elected captains democratically and could depose them at any time (see, e.g., Treasure Island). Captains were retained or turned out based on their ability to dole out booty to the crew members. Also, they instituted one of the first workers compensation systems for disabled pirates! Crew members injured or disabled on the job received a certain amount of treasure based on the severity of their injury. And don't forget their advanced views on women in the workplace: Anne Bonney (or Bonnie) was a woman pirate.

In short . . . pirates were political progressives!

Indeed.

[Eugene Volokh,
7:09 AM]
MORE WISDOM FROM THE CALIFORNIA CIVIL CODE. My friend Stephen Newman passes along Cal. Civ. Code § 3537: "Superfluity does not vitiate." One California case explains that this means that "The law recognizes that a drafter does not detract from a general principle merely by reiterating the principle in a specific context" -- but, ultimately, who cares what it means? It just sounds so good.

Thursday, October 31, 2002

[Eugene Volokh,
9:16 PM]
MORE SPEECH SUPPRESSION ON UNIVERSITY CAMPUSES: According to the Knoxville News (thanks to reader David Pitelli for pointing this out),

A University of Tennessee fraternity has been suspended because of an incident last week in which white members painted their faces to look like the black pop group The Jackson Five.

The national office of Kappa Sigma has suspended its UT chapter, which means the fraternity "no longer has standing as a registered student organization and is suspended from participating in university activities, such as Homecoming," according to a statement issued Wednesday by UT Vice President and Provost Loren Crabtree. . . .

A number of black students complained to campus officials last week after a group of fraternity members allegedly walked from their fraternity house to a party on the Cumberland Avenue Strip dressed as the Jackson siblings, according to UT's account.

Even if the national Kappa Sigma organization reinstates the UT Lambda chapter, UT might not choose to recognize the group, according to Crabtree.

"We will require the leaders and members of Kappa Sigma to demonstrate a commitment to uphold our expectations for civility, ethnic diversity and racial harmony," Crabtree said.

Crabtree indicated that individual students involved in the incident might face university sanctions once the investigation is concluded.

Crabtree said the incident was "particularly distressing to the members of the (UT) administration because all fraternities and sororities participated in a workshop a year ago to address a similar situation at another institution." . . .

Uh, administrators, sorry to distress you even further, but the First Amendment gives people the right to be uncivil, unharmonious, and not terribly respectful of racial harmony. What's more, it means that when you sanction people, you are violating the Constitution, and can be and should be sued and held financially liable.

The funny thing is that this very issue -- people's right to wear blackface -- has come up before, and has actually led to a U.S. Court of Appeals decision, Iota Xi v. George Mason University (4th Cir. 1993) that made perfectly clear that public universities may not punish students for wearing blackface. But even without the Iota Xi decision, the right First Amendment result would be obvious.

(Note that if this were simply a case in which (1) the national fraternity suspended its local chapter, and (2) the University only recognized fraternities that were recognized by their national body, the situation would be different -- the national fraternity is a private actor, and is free to set up whatever rules it pleases, and the University's hypothetical rule wouldn't require the University itself to judge people's speech, and would thus be likely permissible. But judging from the newspaper article, it appears that the University is planning to take it on itself to punish the fraternity, and its members, for what they said.)

[Eugene Volokh,
6:55 PM]
VIOLATIONS OF TECHNICAL ELECTION RULES: A reader points to this article about an election glitch in Maryland:

An effort by the state Republican Party to get absentee ballots into as many hands as possible - a smart tactic as the race for governor comes down to the wire -- has run into problems.

The GOP has mailed thousands of preprinted absentee ballot applications this month to those who have voted absentee in the past, and told recipients to send the form to local election boards to get a ballot.

But according to the state Board of Elections, those applications are no good, in part because they don't include a place for the voter's date of birth. When Republicans learned the state board wouldn't automatically distribute ballots when they receive the mass-printed application, they threatened to sue.

The elections board and the GOP worked out a compromise: Local elections offices would make an effort to contact voters who send in the forms and offer to get them an official state-sanctioned absentee ballot application.

Still, the deadline for handing in completed applications (or written informal requests, which are also acceptable) is today. So it's possible that many potential Republican voters will have applications rejected because they'll miss the deadline. . . .

Now it seems to me that this violation -- and I assume that the lack of a birthday was indeed a violation -- was not terribly important: I really don't see how the lack of a birthdate would materially affect, say, the risk of fraud, or anything else that goes to the fairness of the election. On the other hand, it is a violation, and perhaps the rules should be enforced strictly, to prevent possibly partisan exercise of discretion. Tough issue generally, and I don't have a firm idea on how it should be resolved; but I thought I'd pass along this latest data point.

[Sasha Volokh,
6:17 PM]
LEGAL PICTIONARY -- an interesting game you law types might try. I played it two weeks ago with friends of mine from school and it worked quite well. One person drew "Ignorance of the law is no excuse" (this was tough and we had to go to a "sounds like"). Then I drew "42 U.S.C. § 1983" (this involved a policeman arresting someone unconstitutionally (voice bubble containing Constitution crossed out), then the guy takes the cop to court and speaks, in a voice bubble, "§!"; then I drew the Civil War, etc.). One guy drew "jail" (that was easy); I drew the Third Circuit (in honor of Howard); then we drew Supreme Court Justices.

[Eugene Volokh,
3:17 PM]
TAUGHT IN A CLOWN COSTUME TODAY. The students seemed amused, though I think some costumes from past years (a gorilla and a chicken) worked better. I'm going to try getting a rabbit costume for next year -- there's just something particularly effective about dressing as a large animal. On the other hand, the head can be quite uncomfortable; a clown outfit is better on that score.

[Eugene Volokh,
3:05 PM]
MINNESOTA SUPREME COURT ISSUES ORDER IN ABSENTEE BALLOTS CASE: Fellow lawprof Rick Hasen posted this to a lawprofs' list, and I thought I'd pass it along. (Rick also points out that order 4 "fails to clarify what it means to count the ballot 'in the same manner as if the vacancy had not occurred'" -- I wonder whether this might pose problems, though I suspect it won't.)

STATE OF MINNESOTA
IN SUPREME COURT
C7-02-1879

Mike Erlandson, et al.,

Petitioners,

vs.

Mary Kiffmeyer, Minnesota Secretary
of State, and Patrick H. O’Connor,
Hennepin County Auditor/Treasurer,
individually and on behalf of all County
and Local Election Officers,

Respondents.

O R D E R

PER CURIAM.

The above-entitled matter came on for hearing before the court sitting en banc on Thursday, October 31, 2002 on the petition of Mike Erlandson, John Eisberg and Mollie Lorberbaum for relief pursuant to Minn. Stat. § 204B.44(d) (2000), alleging that the respondents Mary Kiffmeyer, Secretary of State, Patrick H. O’Connor, Hennepin County Auditor/Treasurer, and other county election officials have erred in failing to properly administer the instructions, the absentee ballots and the supplemental ballots for the general election scheduled for November 5, 2002.

Senator Paul Wellstone was the nominee for the United States Senate on behalf of the Democratic Farmer-Labor Party for the general election. On October 25, 2002, Senator Wellstone died, creating a vacancy on the ballot under Minn. Stat. § 204B.41 (2000). On October 31, 2002, the Democratic-Farmer-Labor Party filed a nomination certificate naming Walter Mondale as the party’s nominee. On October 31, 2002, county election officials began preparing official supplemental ballots with Mr. Mondale’s name in substitution for Senator Wellstone.

Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:

1. An official supplemental ballot must be prepared in accordance with Minn. Stat. § 204B.41 as a result of Senator Wellstone’s death.

2. If a voter has already cast a regular absentee ballot and requests, in any manner, an official supplemental ballot, the county election official shall provide the official supplemental ballot and a second regular absentee ballot, as a set, by mail using methods authorized for mailing of absentee ballots in Minn. Stat. ch. 204B, or in person if requested in person, to be utilized by the voter. Instructions shall accompany the ballot set clearly stating that if the voter wishes to vote in the races on the regular ballot the second regular absentee ballot must be completed and returned, and that the second regular absentee ballot will replace the first regular absentee ballot cast by the voter.

3. If a voter casts two regular absentee ballots, the ballot with the later date on the return envelope shall be counted.

4. If a voter casts a regular absentee ballot but does not cast an official supplemental ballot, the ballot shall be counted in the same manner as if the vacancy had not occurred.

5. If a voter casts a second regular absentee ballot and an absentee official supplemental ballot, the second regular absentee ballot shall be counted for all races except the office of United States Senator. The official supplemental ballot shall be counted for the office of United States Senator.

6. County election officials shall personally provide an official supplemental ballot and a second regular ballot to agents designated by persons in health facilities pursuant to Minn. Stat. § 203B.06, subd. 3(b) (2000).

7. County election officials must timely deliver official supplemental ballots and second regular ballots to health care facility residents who received a regular ballot pursuant to Minn. Stat. § 203B.11 (2000).

8. A person may write in the name of a candidate either on the regular absentee ballot or the official supplemental ballot.

9. Minnesota Statutes § 204B.45 (2000) provides that voters residing in municipal areas with fewer than 400 registered ballots may vote by mail. Mail balloting is a procedure different than absentee balloting. If a voter has already submitted a “mail ballot” and requests, in any manner, an official supplemental ballot, the local election official shall provide the official supplemental ballot and a second regular ballot, as a set, by mail using methods authorized for mailing of absentee ballots in Minn. Stat. ch. 204B or in person if requested in person, to be utilized by the voter. Instructions shall accompany the ballot set clearly stating that if the voter wishes to vote in the races on the regular ballot the second regular ballot must be completed and returned, and that the second regular ballot will replace the first regular ballot cast by the voter.

10. So as not to impair the orderly election process, this order is issued with opinion(s) to follow.

Dated: October 31, 2002

[Eugene Volokh,
2:45 PM]
MORE ON THE SCOUTS AND ATHEISTS: A few readers argued that it's proper for the Scouts to exclude atheists because the Scout Oath requires people to affirm their duty to God. "Why should the scouts accept someone who rejects one of their core beliefs?," asks one reader.

My point is simply that the Scouts shouldn't take belief in God as one of their core beliefs. I can understand if they only wanted devout Protestants, or some such -- that belief would at least have something to do with one's likely actions and attitudes about the world. But that just isn't true of the mere possession of belief of any intensity in any God, which is all that the Scouts demand.

If the Scouts excluded Catholics -- everyone else, Jewish, Protestant, or what have you is fine, but not Catholics -- we'd rightly condemn them, even if they said "Rejection of Catholicism is one of our core beliefs." Likewise, I think, when they exclude atheists. They have a constitutional right to exclude people on these grounds. But we are right to condemn them for it. (Thanks to reader Jeff Bishop for reminding me of this point.)

[Eugene Volokh,
2:24 PM]
EVEN THE BEST FALTER SOMETIMES: November's Reason, on p. 13, reports (as a stand-alone blurb) that

The First Amendment goes too far in guaranteeing free speech, say 49 percent of people polled by the First Amendment Center. The percentage of people who think speech protections are too robust is up some 10 points from 2001.

Here we see the problem with (1) the common usage of "First Amendment rights" as meaning "free speech rights," (2) a poorly drafted survey that asks about different First Amendment rights in one question, and (3) some less than careful reading of the survey results. The survey actually read respondents the whole text of the First Amendment and asked them,

Based on your own feelings about the First Amendment, please tell me whether you agree or disagree with the following statement: The First Amendment goes too far in the rights it guarantees.

Not free speech -- the First Amendment, which includes religious freedom and the ban on establishment of religion, as well as the freedom of speech, press, and assembly. It's impossible to tell from this question what fraction of the 49% thought free speech protection was just fine, but that the Establishment Clause had been read too broadly, giving people too many rights to object to creches, graduation prayers, funding programs that include religious schools, and so on. Note that the survey was conducted in part right after the Ninth Circuit's ruling that held that a person had a First Amendment right to object to the use of "under God" in the Pledge of Allegiance. (I made this point in a September blog post.)

And we have even more concrete evidence that people's views on the First Amendment generally aren't necessarily their views on free speech in particular -- a later question on the same survey asks: "Even though the U.S. Constitution guarantees freedom of speech, government has placed some restrictions on it. Overall, do you think Americans have too much freedom to speak freely, too little freedom to speak freely, or is the amount of freedom to speak freely about right?" Only 10% said "too much freedom," 21% said "too little," and 67% said "about right."

Careful with those seeming synonyms -- "First Amendment" may appear to be the same as "the freedom of speech," but it's not.

[Eugene Volokh,
2:06 PM]
THE TALE OF THE TWO BROTHERS: The recent breakdown of Israel's "unity" coalition reminded me of this story; I cannot claim that the story is at all instructive about current events, but those events jogged my memory, so I thought I'd pass it along.

The Talmud, I have heard, tells of two brothers who lived on opposite sides of the hill; one lived alone and the other with a large family. One day, the one who lived alone thought to himself: "Oh, my poor brother -- there he lives, with all those mouths that he has to feed; he must be barely surviving, though he tries to hide that. I, on the other hand, just have to feed myself, so I'm doing very well, and have plenty left over. Let me take some of my surplus tonight, and go over the hill to leave it in my brother's barn."

But that very day, the one who lived with the family thought to himself: "Oh, my poor brother -- there he lives, with no-one to help him; he must be barely surviving, though he tries to hide that. I, on the other hand, have all these children who help me, so I'm doing very well, and have plenty left over. Let me take some of my surplus tonight, and go over the hill to leave it in my brother's barn." So at the same hour of the night, the brothers walk up the hill with their sacks of food, meet, see what the other is doing, and embrace. And on that hill, the Temple was built.

Well, that's the Talmudic story (or so I am told). But, some say, there's another version of that story. Two brothers lived on opposite sides of the hill; one lived alone and the other with a large family. One day, the one who lived alone thought to himself: "Oh, that awful brother of mine -- there he lives, with all those children who can help him; he must be rolling in wealth, though he tries to hide that. I, on the other hand, live all by myself, and badly need more food. Let me go over the hill and take some of the surplus from my brother's barn."

But that very day, the one who lived with a family thought to himself: "Oh, that awful brother of mine -- there he lives, all alone, with no-one else on whom he has to spend money; he must be rolling in wealth, though he tries to hide that. I, on the other hand, have so many children to take care of, and badly need more food. Let me go over the hill and take some of the surplus from my brother's barn." So at the same hour of the night, the brothers walk to the other's barn, walk back up the hill with the sacks of food that they've taken, meet, see what the other is doing, and start punching each other. And on that hill, the Knesset was built.

[Eugene Volokh,
1:31 PM]
FREE SPEECH, CANADIAN STYLE: Here's an excerpt from an article today on WorldNetDaily (thanks to reader Matt Bower for passing along the pointer). I'm not sure how correct it is, but a quick LEXIS check suggests that at least the account of what Harding was originally convicted for seems accurate":

[Mark] Harding was convicted in 1998 on federal hate-crimes charges stemming from a June 1997 incident in which he distributed pamphlets outside a public high school, Weston Collegiate Institute in Toronto. Harding -- who said that until that point he spent most of his time evangelizing Muslims -- was protesting the school's policy of setting aside a room for Muslim students to pray during school hours.

In one of his pamphlets, Harding listed atrocities committed by Muslims in foreign lands to back his assertion that Canadians should be wary of local Muslims.

The pamphlet said: "The Muslims who commit these crimes are no different than the Muslim believers living here in Toronto. Their beliefs are based on the Quran. They sound peaceful, but underneath their false sheep's clothing are raging wolves seeking whom they may devour. And Toronto is definitely on their hit list."

"The point I was trying to make is you shouldn't have a violent religion like Islam allowed in a school when Christianity or Hinduism or Buddhism is not allowed," he told WND. . . .

Judge Sidney B. Linden's 1998 ruling against Harding was based on Canada's genocide and hate-crimes law. The judge determined he was guilty of "false allegations about the adherents of Islam calculated to arouse fear and hatred of them in all non-Muslim people."

The law bars a public statement that "willfully promotes hatred" against groups "distinguished by color, race, religion or ethnic origin." The code has an article that excuses statements expressed in "good faith," including religious expression. But the trial judge found that Harding had either "tried to incite hatred or was willfully blind to it," according to lawyer Akbaralli.

Canadian Christian groups are fighting a bill reinstated this month by a homosexual parliament member that would add "sexual orientation" as a protected category in the hate-crimes statutes. Known previously as bill C-415, it is now registered as C-250. . . .

Harding's 1998 conviction on three counts of willfully promoting hatred was commended by Canadian Muslims.

"The verdict sends a message to Christians, Muslims and Jews that personal views of that nature can't be allowed in a public forum," said Shahina Siddiqui, coordinator of community relations and social services for the Manitoba Islamic Association, in a report by the Canadian evangelical publication Christian Week. "There's a fine line between freedom of expression and hatred. Harding crossed that line."

Now that his appeals have been rejected, he has to serve out his sentence, which apparents consists of mandatory study of Islam:

After losing an appeal to Canada's Supreme Court on Oct. 17, Mark Harding must resume his sentence of two years probation and 340 hours of community service under the direction of Mohammad Ashraf, general secretary of the Islamic Society of North America in Mississauga, Ont.

Harding, 47, said he had one session under Ashraf in 1998 before an appeal process stayed the sentence.

Ashraf, according to Harding, said that instead of licking stamps and stuffing envelopes, "it would be better if you learned about Islam."

The cleric made it clear, Harding recalled in an interview with WorldNetDaily, that during the sessions nothing negative could be said about Islam or its prophet, Muhammad.

"He said he was my supervisor, and if I didn't follow what he said, he would send me back to jail," recounted Harding, who had been prevented from speaking publicly about his case under a gag order. . . .

During his 1998 session with Ashraf, Harding was told to read a book called Towards Understanding Islam, by Sayyid Abul A'la Maududi.

On page 12 of the book, Harding noted, it gives a description of a "kafir," or infidel, a person who does not follow Islam.

"Such a man . . . will spread confusion and disorder on the earth," the book says. "He will without the least compunction, shed blood, violate other men's rights, be cruel to them, and create disorder and destruction in the world. His perverted thoughts and ambitions, his blurred vision and disturbed scale of values, and his evil-spelling activities would make life bitter for him and for all around him." . . .

Read the whole things, which has more details.

I wouldn't say much about this -- these questions about Canadian law are, I think, mostly for Canadians to focus on, at least until the restrictions become considerably graver than they are now -- except that many people (mostly on the Left) have suggested that American free speech law should follow the more "reasonable," "balanced," or "nuanced" European and Canadian model. Given this argument, it's helpful for us Americans to know just what the consequences of this supposedly superior approach can be.

[Eugene Volokh,
10:51 AM]
DRESS AS A MOVIE: Most years, I have a Halloween or a Halloween-adjacent party where the theme is "dress as a movie," "dress as a song," "dress as a book," "dress as an event from world history," or some such. Most of these parties have been "dress as a movie," since this has for some reason proven to be the most fun. People are told that they can interpret the theme however they like it (they could come as a reel of film, if they'd like), but most people generally come as visual puns on movie titles. I'd explain more about this, but Jesse Walker just blogged about his experiences at the 2000 party, so you can just read up on it there.

To the best of my knowledge, the theme is original to me (though of course some other people might have discovered it independently), but I license all of you to use it if you'd like. Not that you need a license -- it's an idea, not an expression, and thus not protected by copyright law, even though I think of it as not just a party but as a work of interactive performance art. But I'll give it to you anyway.

I have considerable sympathy with groups that try to promote particular religious ideas, or particular religious communities, even if I don't agree with the underlying religion. If Catholics want to have the Catholic Scouts that either teach Catholicism, or teach other things but in an environment where everyone is assumed to be a pretty devout Catholic, I see no moral problem with that. The Catholic worldview, like it or not, is a specific perspective on the world that Catholics have good reason to want to promote, and I think society is on balance richer with these sorts of institutions that help inculcate their own worldviews into the next generation. It might be counterproductive in some ways -- perhaps Catholic kids would benefit from spending more time around those who have other religious perspectives -- but that's a tough call.

But the Boy Scouts aren't focused on devout Catholicism, or even Catholicism generally, or even Christianity generally. As best I can tell, the Boy Scouts are open to anyone who says they're religious, regardless of the religion, and regardless of the degree of devoutness. Hindus qualify, Jews qualify, people qualify if they say "I'm religious" even though they never pray, never go to church, and don't organize any aspect of their lives around their ostensible religiosity.

This open-mindedness is generally to the Scouts' credit, but then what's the point of excluding atheists? An atheist in a group of devout Catholics might be seen as interfering with the group's educational mission -- but an atheist in a group of people of all religions, many of whom are nominally religious at most, wouldn't interfere with anything.

What's more, the Scout policy doesn't even exclude atheists -- an atheist can be a Scout so long as he pretends to religiosity, and keeps quiet about his atheism. Dishonest atheists are allowed; honest ones are excluded. Pretty counterproductive, I think.

So excluding atheists seems to me counterproductive, and wrong from the perspective of what's good for scouting; but why do I think that it's immoral -- though not a very grave immorality, I admit, more in the category of unkindness than anything much deeper? Because excluding people, especially if you're a charitable organization, for no good reason is not a nice thing to do.

It's rude to the excluded person, because it tells them that there's something bad about them; it's not just "We want to promote Catholic ideas, so we'd like to have a place where Catholics can raise their kids in a Catholic environment," but "We're happy to have our kids around virtually everyone, except those who hold your beliefs." It conveys a harmful idea, which is that there's something uniquely bad about professed atheists (who, to my knowledge, are on balance no better and no worse people than the great majority of Americans who are at least nominally religious). And instead of teaching kids that they should look to whether people act morally, or to whether people at least profess adherence to some standard of morality, this teaches kids that they should look to whether people label themselves as "atheist" as opposed to labeling themselves (perhaps with no real devoutness of belief) as "religious."

So the Boy Scouts ought to change their policy, and it's right for people to publicly fault the Scouts for having their policy (though such faulting should keep a sense of proportion -- as wrongs go, this is a fairly minor one). To the extent that the Scouts get some preferential benefits from government entities, their practice here may counsel in favor of the government withdrawing these preferences, and treating the Scouts the same way that they would treat other groups. But the Scouts do have the constitutional right to retain their policy, even though I think it's mistaken.

[Orin Kerr,
9:57 AM]
THE TURF BATTLE CONTINUES, ALTHOUGH THE N.Y. TIMES WON'T ADMIT IT: Yesterday's N.Y. Times story reporting that federal intervention might have blocked a confession by the sniper was big news today. The feds denied it, and lots of news sources covered the story. The Washington Post had this pretty balanced story on the dispute. The Post story nicely points out the broader context of the turf battle between the feds and the states, and even corrects an error in yesterday's Times story about a statement the federal prosecutor was alleged to have made, but apparently did not.

The N.Y. Times itself took a different approach. The Times dutifully ran a story on the feds' denial that they did anything wrong, titled "Prosecutor Says U.S. Involvement Did Not Block Sniper Confession". However, the Times story again fails to acknowledge any context for the story. The Times is playing this like a straightforward he-said-she-said, without any recognition of the possibility that the Paper of Record is just being used by law enforcement agents waging a tit-for-tat.

Wednesday, October 30, 2002

[Eugene Volokh,
4:17 PM]
NEGLIGENT RETENTION/SUPERVISION TORT VS. FREE SPEECH: Here's one more way of looking at the issue. Say the Church can indeed be held liable for not investigating, or more closely supervising, Shanley based on the public speeches he gave. (I realize that the Church might well be properly held liable for other failures to supervise; I focus here only on the claim that the Church was negligent in not paying enough attention to the speeches.)

This means that employers have a legal duty to investigate employees based on their speech on political or social subjects. That's the essence of negligence liability -- if an entity can be held liable for not doing X, this means that the entity has a duty to do X. (This inquiry into duty is actually the first prong of the negligence test, the other prongs being breach of duty, but-for cause, proximate cause, and damages.) Under the plaintiffs' theory, it seems to me, an employer has a duty to investigate employees when they make certain statements on political or social subjects, whenever their political or social views might be correllated with the employees' tendency to engage in certain crimes in the future. If the employer breaches that duty, and then damage results (and the but-for cause and proximate-cause elements are satisfied) because the employee does indeed commit the crime, the employer will be held liable.

This is what I object to -- a legally imposed duty (one imposed through the tort liability system and not by statute, but still one that's backed by the coercive force of the government) to investigate, supervise, and perhaps even eventually fire people based on the political and social views that they express. And I've already given examples of how this doctrine could be applied to lots of other political and social views.

[Eugene Volokh,
1:01 PM]THE FEDERAL LAWYER, BELLESILES, AND THE NRA: Last week, I mentioned that a reviewer in The Federal Lawyer magazine had published a retraction of his earlier favorable review of Arming America; thanks to the help of the magazine, I now have the original review and the retraction up on my site.

I also mentioned that the retraction

makes a recurring point that quite puzzles me: "The National Rifle Association and other gun rights advocates have long claimed that in Colonial America every colonist owned a gun" (p. 51); "There is no way that every colonist owned a gun" (p. 51); "NRA claims of universal gun ownership" (p. 51); "the nonsensical NRA claims of universal ownership" (p. 51); "everyone did not own a gun (thus disproving the NRA's position)" (p. 53). I've never heard the NRA really claiming that everyone -- literally everyone -- owned a gun. Such a claim would be quite surprising, precisely because (as Coblenz points out), it defies "common sense," since some colonists "were just too poor to own a gun," and since some others might have objected to guns for moral reasons (though I'm not sure how many of the even pacifist colonists also abjured hunting).

At most, I can imagine the NRA saying this as hyperbole, in the sense that some people today say "In America, everyone is armed" when they mean "My, there are a lot more guns in America than I thought there would be / should be / are in my country." See, e.g., L.A. Times, Oct. 25, 1993, at C14 ("It is also understandable for the rest of the world to think hard about vacationing in a country where, they believe, every American carries a gun and doesn't hesitate to use it.") -- did the author really mean that Europeans think that every American carries a gun (and doesn't just own one)? And given Coblenz's statement that "Here the evidence shows that everyone did not own a gun (thus disproving the NRA's position), but it does show that a significant percentage of the population did own guns, somewhere around two-thirds or three-fourths of the population, varying from colony to colony."

Since then, I've corresponded with the reviewer, via the magazine, and received the following reply:

I do not know what the official NRA position is on gun ownership in colonial America. I checked their web site (a wealth of information by the way, unlike many organizations web sites) and didn't find anything.

I'm sure that I have heard many gun rights supporters say that "every colonist had a flintlock over the mantle" or words to that effect. Clearly that is not the same as "Universal" gun ownership, but the implication is that most all nearly all colonists were armed. And I recognize that if Bob Barr says something it is not necessarily an official possition of the NRA. However, I have neither the time, the resources, or the interest in tracking down those kinds of quotes.

The idea, however, that all (nearly all, most, however you want to state it) colonists is still a widely held view, and it's probably not an idea spread by anti-gun groups.

In a later message to me, the reviewer further said (after allowing me to post the message that I quote above),

I should have been more circumspect and said many gun rights advocates instead of the NRA. I, like many people, use labels -- like the NRA, Democrats, Republicans, etc. -- to include a wide group of people that actually have varied opinions on things. This was particularly inappropriate in my article since one point was that hyperbole is often counterproductive.

I thought I would report this, since I'd raised the matter earlier. As I mentioned, I think the reviewer's retraction of his earlier review was quite praiseworthy; and though he erred in his criticism of the NRA in the retraction, I likewise give him credit for ultimately acknowledging his error on that score, too.

But I do think that this incident does show how easy it is even for otherwise fair-minded people to say some unfair things about the NRA, and gun-rights advocates more generally. And when the media, both general-audience and lawyer-focused, tends to be anti-gun, those groups end up being treated quite shabbily quite often. (Of course, hard-core gun-rights supporters likewise treat pro-control groups unfairly as well.)

[Orin Kerr,
11:23 AM]
AN IMPORTANT SNIPER STORY, OR JUST SOUR GRAPES?: The front page of the N.Y. Times has a story today about the possibility that the sniper was just about to confess before the feds took over the case and filed charges in federal court. The article, titled "U.S. Case Seen as a Barrier to a Confession," purports to be about the progress of the investigation, the evidence against Muhammad, and the like.

I see something else in the story, however. In all likelihood, the real story here is about a handful of law enforcement agents who saw the case of their careers yanked away, and called up the New York Times to see if they could get some revenge. Among law enforcement agents, the sniper case is a hot item, and everyone is jockeying for position. In fact, as the Times reported, the agents questioning Muhammad first ignored the calls from a federal prosecutor, and didn't give up custody of Muhammad until the prosecutor threatened to send FBI agents to seize him. By that point, the agents claim, Muhammad was just about to confess, and they're sure that that they would have been able to get him to confess if only the prosecutor hadn't taken the case away from them.

Maybe that's right, maybe it's not. But it's clearly self-serving speculation. In other words, the U.S. case is "seen as a barrier to a confession" by a handful of people who wanted the case for themselves, and had it taken away from them. This story could be nothing but sour grapes from the losing end of a law enforcement turf battle. But there's no warning of that possibility in the Times story itself.

[Eugene Volokh,
10:52 AM]
SEATTLE RADIO: I'll be on a Seattle NPR station, KUOW, 94.9 FM, today at 1 pm, to talk about the right of association.

The jumping-off point for the discussion is the case of the atheist Boy Scout who is claiming that the Boy Scouts should not kick him out because of his atheism. I sympathize with him as a moral matter, but I think the Scouts have a constitutional right to do what they want, even if it's not the decision I would have made.

My sense is that if it came to court (and it's not clear that it will), the Scouts should win, especially given Dale v. Boy Scouts Association, which held that the Scouts have a right to exclude openly gay scouts from holding leadership positions. One can argue that the right of expressive association should relate only to groups' choice of leaders, not to their choice of members -- a matter that Dale didn't completely resolve -- but I think that the logic of Dale, and the right constitutional rule more broadly, should be in favor of the Scouts.

Arent you overlooking the state action requirement for a violation of constitutional rights? The First Amendment protects citizen speech from retribution by the government. The First Amendment has never been construed to preclude retribution by private employers or other private citizens.

The last two sentences are absolutely correct: If a private employer, university, property owner, church, householder, or whoever else severs its relationship to someone because of the person's speech -- or otherwise tries to prevent the speech or punish the speech -- there's no First Amendment violation. When you admonish your 10-year-old son not to say bad words at the dinner table, and he complains about your violating his First Amendment rights, tell him: "Young man, you're apparently unacquainted with the state action doctrine."

But when the government tries to pressure private entities into restricting speech on pain of government-imposed liability, there surely is government action, and a potential First Amendment violation. Say the government said "Any private university that tolerates anti-war speech by its students, and does not promptly discipline students who engage in such speech, shall be fined $10,000 per incident, or shall be subject to a lawsuit by any person who is offended by the speech." (I realize that this law is different in many ways from negligent retention/supervision doctrine, but it's similar in one important way -- it makes private entities legally liable based on the speech of those whom they control, and thus pressures the private entities into restricting that speech.) The government action comes not in the private university (or employer or landlord) restricting speech; it comes in the government imposing legal liability when the private university fails to restrict speech.

Or consider a different sort of constitutional rule -- the rule that state governments generally may not discriminate against noncitizens. Private employers are of course not bound by this constitutional rule, just as they aren't bound by the First Amendment. When an employer fires someone because he's a noncitizen, there's no constitutional violation (though under some statutes there might be a statutory violation). But when the Arizona legislature made Arizona employers liable for hiring non-citizens as more than 20% of their employees, the Court struck that down (Truax v. Raich (1915)). "The fact that the employment is at the will of the parties," the Court held, "does not make it one at the will of others." The fact that the employer could fire an employee for being a noncitizen doesn't mean that the state legislature can pressure the employer into doing that. (Note that the federal government has much more power to discriminate against noncitizens, and to force employers into doing so; that's a quirk of the constitutional doctrine having to do with citizenship status discrimination, and doesn't affect the broader state action that I focus on here.)

I discuss this very issue in much more detail as to one of my major research interests, free speech and workplace harassment law, on this page. But more broadly, focusing on the hypos that I mention above, and the ones in this post, seems to me to show that this must be the rule, or else the government could dramatically restrict people's speech by simply drafting private entities as its enforcers.

[Orin Kerr,
7:35 AM]
WHY THEY HATE US: UNITED STATES DENIES CAPTIVES FUNDAMENTAL HUMAN RIGHT TO EGGPLANT: Disturbing reports from former prisoners recently released from custody in Guantanamo Bay, Cuba, offer a chilling account of the treatment that prisoners faced. According to the Washington Post, released prisoners reported that while they were "not unhappy" at Guantanamo, they were bored. Prisoners were given copies of the Koran to read, but apparently the U.S. made no efforts to provide organized entertainment. One former captive, Hajji Mohammed, complained that the food was good, but that there was no okra or eggplant. "The Americans treated me well," Mohammed told reporters, "but they were not Muslims, so I didn't like them."

Tuesday, October 29, 2002

[Orin Kerr,
5:02 PM]
EXPECT TO BE SNIPERED OUT: Every angle of the sniper story is newsworthy, it seems. The jurisdictional wranglings over who will get to prosecute the sniper is a leading story in the news today (here's a good CNN.com summary of which governments have filed what charges). Yesterday, I saw a local TV news segment that played an audio clip of Muhammad in court. The clip recorded Muhammad's casual banter with court officials when he was present to change his name; there was no apparent point to the story other than to broadcast his voice. And just this afternoon, Tech TV interviewed me for a segment on some of the electronic evidence that the FBI has collected from the sniper's car. Apparently Muhammad had a laptop computer and a global positioning satellite (GPS) receiver in the car, and Tech TV's Tech Live program is running a story tonight on how electronic evidence may be useful in the prosecution. What's missing from all of this coverage, however, is any indication whether any of these details actually matter. I suspect they don't. From what I can tell, the evidence against the snipers is pretty overwhelming. The evidence found at the arrest itself is pretty damning: the fact that the two were caught in the sniper-mobile with the sniper rifle that ballistics experts matched up with the bullet fragments from the crime scenes is itself enough to convict. And there's a whole lot more evidence out there, all pointing to Muhammad and Malvo. Of course, every defendant is innocent until proven guilty. But at least based on my relatively brief experience as a prosecutor, and also as a criminal law professor, I can't see what kind of defense Malvo and Muhammad can successfully mount. I assume that Muhamad's lawyers will try to argue the insanity defense, if only by process of elim
nation. Perhaps Malvo's lawyers will try to argue either duress (that is, Muhammad made him do it), or some kind of diminished capacity. But at least based on the facts we know so far, I don't quite see these defenses going anywhere. What made this case so disturbing is what makes it a pretty easy case for the criminal justice system: the defendants calmly and purposely set about to kill innocent people over a period of weeks. All of which means that we're likely in for a lot of O.J.-style press attention of a case with a predictable conclusion. Perhaps we'll learn something about Malvo which will change his culpability. His case is the one to watch, I think. But with regard to Muhammad himself, however, this looks like an easy case for the government to win.

[Eugene Volokh,
4:02 PM]
A BIT MORE ON NEGLIGENT RETENTION / SUPERVISION AND EMPLOYEE SPEECH: A reader disagrees with my First Amendment views, and gives the following hypothetical:

Suppose I run a day care center, and in the course of interviewing an applicant I discover that he's written numerous unpublished essays on satanism advocating child sacrifice (or at least demonstrating a strong obsession with such activity). Suppose I find no evidence of actual wrongdoing and, having read your posting, I hire him and he goes on to slaughter several of the kids in my care. Are you saying that my hiring him despite my knowledge of his writings shouldn't be a basis for a jury finding of civil or criminal liability on my part?

Actualy, I am. Such behavior may be "negligent" in the pragmatic sense, but as a constitutional matter I think such negligence liability must be preempted by the First Amendment.

Let's consider this very hypothetical: The reader is essentially saying that, by operation of law -- the threat of legal liability -- people who express certain political, social, or religious views may be made unemployable, at least in certain professions. And surely this isn't limited to day care centers; any time that an employee commits a crime that was in some measure facilitated by his employment, people may potentially sue the employer claiming that the employer was negligent in hiring this person.

Suppose that someone has written things expressing views of self-defense that go beyond legal rules (e.g., that people should be allowed to carry guns even where it's prohibited, or that people should be able to use lethal force to defend property). You hire him in any capacity, and then he has a run-in with a customer where he injures or kills him with a gun that he illegally brought to work, or in the course of illegally using lethal force to defend himself or his property. Can you then be sued on the grounds that his political advocacy should have led you to investigate him more closely?

Or suppose that someone has written things supporting the legalization of drugs, and in fact claiming that certain drugs have gotten an unfairly bad reputation, and are actually good for you. You hire him, and then he beats up a customer under the influence of the drug, which he turns out to have been consuming. Can you then be sued on the grounds that his political and scientific claims should have led you to investigate him more closely?

I think the answer would have be "no"; the government may not punish employers for their employees' speech, or for failing to investigate their employees extra carefully because of their speech. It might sound at first that such punishments will only end up burdening pro-child-molestation speakers, or pro-Satanist speaker, but it seems to me that they would apply to a wide range of people. Whenever a jury finds, after the fact, that an employee had publicly expressed some political, religious, or social sentiments that seemed to show a crime-prone attitude, it could hold the employer liable for hiring the employee, or at least for not adequately investigating or supervising the employee (and what constitutes adequate investigation or supervision will be highly uncertain). And as a result, rationally cautious employers will -- because of fear of government-imposed liability -- refuse to hire people who say certain things. I don't think the First Amendment allows this.

[Juan Non-Volokh,
3:45 PM]
HERE WE GO AGAIN: An election lawsuit has been filed in Minnesota.

[Eugene Volokh,
2:01 PM]
NINTH CIRCUIT UPHOLDS INJUNCTION ALLOWING DOCTORS TO RECOMMEND -- IN SOME INSTANCES -- MARIJUANA TO THEIR PATIENTS: Here's the majority opinion, and Judge Kozinski's concurrence. Of course, this doesn't affect the federal government's ability to punish actual marijuana use, and the injunction doesn't even extend to recommendations that are made with the intent that the patient get marijuana in violation of federal law (which might lead to some pretty gossamer, though not necessarily senseless, distinctions between recommendations made with the intent that the patient get the marijuana and recommendations made with the knowledge that the patient will get the marijuana). Still, it's an interesting, and likely symbolically significant, decision.

[Orin Kerr,
10:39 AM]
THINK GLOBALLY, INTERROGATE LOCALLY: There's a fascinating story in today's Washington Post about interrogations of Al Qaeda suspects captured in Afghanistan. It seems that interrogations occuring locally at the U.S. military base in Bagram, Afghanistan are proving much more fruitful than interrogations closer to the U.S. in Guantanamo Bay, Cuba:

"Every few days we'll capture 15, interrogate 10, and get three or four to rat out everybody else," a U.S. official said of operations in Afghanistan. "Then using that information, we'll go find a new bunch of 15 or 20, and start over.". . .Interrogators at the U.S. military facility in Bagram are sometimes able to use more aggressive and creative tactics in questioning detainees than their counterparts at Guantanamo Bay can employ, the sources said.. . .Because Guantanamo is so close to the United States and is continually visited by U.S. and foreign officials, informed sources said, the camp operates in more of an atmosphere of "political correctness" than does the Bagram facility -- a sense among interrogators that they must not allow detainees an opening to complain of mistreatment.

[Eugene Volokh,
9:07 AM]
FREE SPEECH QUESTION RAISED BY ONE OF THE LAWSUITS AGAINST THE CATHOLIC CHURCH: I was struck this morning by an interesting N.Y. Times story, called "Bishop Knew Boston Priest Had Praised Man-Boy Sex," by Pam Belluck:

When he was a top official in the Roman Catholic Archdiocese of Boston, Bishop Thomas V. Daily, who now heads the Diocese of Brooklyn, promoted a priest to lead a suburban parish in 1983 even though he had received numerous complaints that the priest was advocating sex between men and boys, according to a deposition released today.

The priest, the Rev. Paul R. Shanley, has since become a central figure in Boston's clergy sexual-abuse scandal, and is accused of molesting at least 25 people, six of whom say they were abused as young children at that suburban parish. . . .

The bishop also acknowledged that he did little in response to a string of complaints that Father Shanley was giving speeches outside of Boston that endorsed sex between men and boys and was attending the formative meetings of the North American Man-Boy Love Association. . . .

For example, Bishop Daily, who was the Boston Archdiocese's second highest-ranking official from 1975 to 1984, was asked in the deposition about accusations he received in 1977 that Father Shanley had said in a speech that "the adult is not the seducer; the kid is the seducer." . . .

Yet in the deposition, Bishop Daily acknowledged that there was no indication that the archdiocese investigated those or subsequent similar accusations, discussed them with Father Shanley or did anything to reprimand him.

As I understand it, the particular claim to which this is relevant is that the church engaged in "negligent retention" or "negligent supervision" -- that it knew or should have known of Shanley's propensity to have sex with boys, and that it should have therefore not kept him as a priest, assigned him to certain parishes, or let him act without closer supervision. And there's much to be said for these theories if they were based on the church's knowledge that Shanley was actually doing bad things (though even there such a claim against a church would raise difficult First Amendment questions related to church autonomy and non-entanglement between the government and religious institutions).

But this evidence of what Shanley said, not what he did, suggests that the church had a legal duty to investigate Shanley based on his speeches, not on his actions. My sense that this is the legal theory is reinforced by another sentence from the story: "Yet in the deposition, Bishop Daily acknowledged that there was no indication that the archdiocese investigated those or subsequent similar accusations, discussed them with Father Shanley or did anything to reprimand him."

To the extent that this is the plaintiffs' theory, may the courts adopt it (by allowing a jury to find negligent supervision or retention based on the church's failure to investigate Shanley fore his speech) consistently with the First Amendment?

As a practical matter, I agree that it would be smart for a church to look closely at priests who are advocating behavior that violates the church's laws. Likewise, it would be smart for a private defense contractor during the Cold War to closely investigate employees who seem to be involved in pro-Communist groups or who say pro-Communist things, just as during World War II it would have been smart for them to investigate seeming Nazi sympathizers, and today it would be smart for them to investigate people who seem to sympathize with Islamo-fascists.

But I don't think that the government may impose a duty on employers to investigate people based on their expressed political, social, or moral views -- a duty enforceable by massive legal liability if the employer fails to investigate, and the people later misbehave.

[Juan Non-Volokh,
8:50 AM]
VOTER FRAUD: I am increasingly disturbed by news reports on vote fraud allegations. It seems that efforts to "enfranchise" voters by making it easier to register and vote with an absentee ballot have greatly expanded the opportunities for unscrupulous players to cheat. Such actions are outrageous -- they subvert the Democratic process and dilute the votes of law-abiding citizens who cast ballots on election day. TAPped seems to think that many of these reports are overblown. For instance, TAPped claims of rampant voter fraud in South Dakota are a "fraud." This report by John Lauck on NRO suggests quite the opposite.

[Eugene Volokh,
7:00 AM]
A POSITIVE VIEW OF BALLISTIC REGISTRIES: Mark Kleiman passed along to me the ATF report on ballistic registries, which argues that ballistics registries would work, and that the California Justice Department report criticizing them was mistaken. I've read the ATF report, and I'm still skeptical about the matter; but I freely admit that I'm not expert enough on the technical questions to come to a definitive conclusion, and look forward to more discussion. (As I've mentioned before, in my view this is fundamentally an empirical question, not a moral or constitutional one; if ballistic registries seemed likely to help clear a lot of crimes, I would support them.)

Monday, October 28, 2002

[Eugene Volokh,
10:05 PM]
UNIQUE VISITORS: According to our BraveNet counter, the unique visitor numbers for the weekdays since last Monday were (rounding) 5000, 4300, 5300, 9800, 9000, and today 11700 (woohoo!). According to our ExtremeTracking counter, the numbers were 4900, 5200, 7200, 5900, 4700, and today 6000. Oddly, the numbers for the week before were much closer to each other.

I have no idea which are right; I'd like to think that the lower numbers were caused by the ExtremeTracking site being down, or too busy, part of each day, so that the visitors didn't register, and that therefore the higher numbers are the right ones. But who knows?

[Eugene Volokh,
4:20 PM]
DNA, FINGERPRINTS, AND BALLISTIC REGISTRIES: I've gotten several interesting reactions to my Friday post on this subject; I hope to respond to them in the next several days.

[Eugene Volokh,
2:27 PM]
INSTAPUNDIT BACKUP SITE: The site is GlennReynolds.com; Glenn will post information there on when the page will be back, and he tells me he even has a backup blog there.

[Eugene Volokh,
1:59 PM]
CANDIDATE: Little-known fact -- "candidate" comes from the same root as the biological term for yeast infections. (Finding the actual common root is left as an exercise for the reader.)

[Eugene Volokh,
1:07 PM]A RESPONSE TO THE NATION'S PIECE ON BELLESILES is now up at the History News Network; I haven't read it yet, but the author, Jerome Sternstein, has been an insightful and accurate critic of Bellesiles. (Thanks to InstaPundit for passing this along; unfortunately, his site is down due to a power outage at the server center.)

[Eugene Volokh,
10:02 AM]"3 KILLED IN U. OF ARIZONA SHOOTING: "A person opened fire Monday in a class at the University of Arizona's School of Nursing, university police said. Three people were confirmed dead." (Thanks to my friend Jack Schaedel for the pointer.)

UPDATE: It now appears that the murderer committed suicide after shooting his victims. That's the one tiny good thing about an otherwise awful event. Clayton Cramer points out that the campus was officially a "weapons-free zone" -- much good that did the victims.

[C]rossing state borders to avoid high taxes has helped restart the once dormant cigarette-smuggling business.

Cigarettes are, in many ways, made for smuggling: They're legal, expensive relative to their weight, easy to ship. Contraband smokes now claim between 2 percent and 6 percent of the U.S. market, but analysts warn that the figure will rise quickly if state and federal officials don't crack down. Counterfeits are pouring in from China and Russia. Customs officers seized 255 shipments of counterfeit smokes this year, up from 24 last year, reports Philip Morris, maker of Marlboro, the world's bestselling and most knocked-off brand. "Cigarettes are becoming a smuggler's paradise," says Jerry Bowerman, chief of the diversion branch of the Bureau of Alcohol, Tobacco, and Firearms.

Law enforcement is still focused on terrorism and the drug trade. But the illicit cigarette trade may be inseparable from those other problems. With tax increases forcing up prices, a smuggler can reap thousands of dollars per truckload -- which can be used for other, often nefarious, purposes. That, at least, was the strategy of more than two dozen men who bought cigarettes in North Carolina, where the tax was 50 cents a carton, and sold them in Michigan, where the tax was $7.50. The group then shipped some of its illicit profits overseas to agents for Hezbollah, a terrorist organization. The terrorism tie-in isn't unusual. The group convicted of planning the first World Trade Center bombing, in 1993, possessed counterfeit cigarette tax stamps; that group later merged with Osama bin Laden's al Qaeda network. And Iraq dictator Saddam Hussein's son Uday is believed to oversee a massive cigarette-smuggling operation in Iraq and the larger region, primarily to enrich his family and fund Iraq's weapons programs. . . .

For those who track cigarette smuggling, the situation is grimly familiar. In the early 1990s, Canada raised its cigarette taxes to bring per-pack costs $3 above U.S. prices. The result: Roughly a third of all cigarettes in Canada were imported illegally. When Canada cut its taxes, cigarette smuggling stopped, but the smugglers stayed around and went into other ventures, alcohol mostly. . . .

According to Cheng Chun-ming, a biotechnology scientist from National Taiwan University who started his own business several years ago and maker of the cakes, the phosphorescent protein extracted from the red algae helps increase a cake's attractiveness but is not a health concern to consumers as it is completely natural and edible.

[Eugene Volokh,
9:22 AM]
FROM MY FRIEND DAVID BERNSTEIN, a libertarian law professor at George Mason University law school:

"Walter Mondale chaired a commission that was for the privatization of Social Security worldwide. He chaired a commission that was for raising the retirement age dramatically. He has a strong record of voting to raise taxes," former House speaker Newt Gingrich (R-Ga.) said on NBC's "Meet the Press."

"I think that what you'll see on the Republican side is an issue-oriented campaign that says, you know, if you want to raise your retirement age dramatically and privatize Social Security, Walter Mondale is a terrifically courageous guy to say that," Gingrich said.

It appears that Mondale actually took at least one correct political position in his life, and that's the one issue on which Gingrich wants to attack him. I hope this attitude has something to do with why Gingrich is now a radio talk show host instead of Speaker, but I doubt it.

(The initial quote, I think, is from the Washington Post this morning; I've checked it on LEXIS, and it appears to be accurate.)

UPDATE: My friend and fellow lawprof Michael Froomkin says that Mondale in fact did not support social security privatization; Orrin Judd tells me the same, and Ramesh Ponnuru says the same in The Corner. (Ponnuru had apparently echoed the original claim about Mondale, but then corrected himself after he was told that the AP story on which he relied was mistaken.) I assume they're correct, but the point that David makes -- and that I echoed -- works in any event: It would be bad for the Republicans to fault Democrats who support social security privatization even if they did in fact support it. So even if Gingrich made the same honest mistake that Ponnuru did, his approach still deserved condemnation.

Seniority counts in the U.S. Senate. It has made Harkin chairman of the Agriculture Committee, which writes the farm programs and is of obvious importance to Iowa. He also heads an appropriations subcommittee that is second only to the defense subcommittee in the amount of money it doles out. It provides funds for health and education - areas of special interest to Iowa.

Harkin is in a position to do a lot for the state. . . .

Iowa shouldn't shrink from taking full advantage of the seniority of Harkin and Grassley. In the past, there has been considerable turnover in the Iowa congressional delegation, meaning few Iowans attained the power that comes with seniority. Iowa has suffered as a consequence, as federal projects and grants flowed elsewhere to help build the economies of other states.

Now it should be Iowa's turn.

I quite agree with Hogberg's critique of this approach. Yes, given the size and breadth of the federal government's role, this sort of pork-barrel thinking is inevitable. But it still deserves criticism.

[Eugene Volokh,
8:08 AM]
WORD OF THE DAY: Dysphemism, which is the opposite of euphemism -- a term used as a "substitution of a derogatory or unpleasant term for a pleasant or neutral one." I say this because I just came back from "the meat market," which is what we lawprofs dysphemistically call the law professor placement conference that the American Association of Law Schools puts together; potential candidates and interviewing teams from various law schools get together in one hotel for 2 days that are subdivided into 30-minute blocks, and the schools decide which candidates they want to fly out for longer interviews. Grueling, but efficient.

By the way, if you go to the meat market and eventually get picked up, your name will eventually appear in the Directory of Law Teachers, which is often called "the stud book" (a horse-breeding reference, I take it).

[Eugene Volokh,
7:42 AM]
GREAT POST ON THE POLITICS OF THE NEVADA MARIJUANA LEGALIZATION CAMPAIGN (PRO AND ANTI), from Mark Kleiman (thanks to Iain Murray for the link.)

Sunday, October 27, 2002

[Eugene Volokh,
8:06 AM]
GERMAN EMBASSY IN ISRAEL PLANS TO HONOR WEHRMACHT, SS DEAD: I've never much liked how some people wave the bloody shirt at modern Germany and Germans, implying that somehow the whole nation has group guilt flowing from the sins of its fathers and grandfathers. But one thing the German government right now seems to be doing is way beyond the pale; this is from Ha'aretz Daily:

The German Embassy in Israel is planning a memorial ceremony next month -- and not for the first time, according to the embassy's military attache -- for Germans killed while serving in the army of the Third Reich, including those in SS units. On November 17, at the the cemetery for World War I soldiers adjacent to the Holy Family hospital in Nazareth, two German priests will give speeches and lay wreathes. . . .

In response to a question, Elbers said similar events are held annually in Germany and sponsored by its missions throughout the world on the memorial day (Sunday, November 3) for war casualties "and victims of hatred, persecution and racism." . . .

The memorial ceremony is intended to symbolize "reconciliation," said Elbers. One of his innovative contributions to this reconciliation, in speaking to an Israeli audience, is the comment that in his opinion "there is no point in dividing the dead into 'good' dead and 'bad' dead."

Hmm, I thought there was a point to dividing people (living or dead) into the good and the bad; but perhaps I was mistaken. Thanks to Justin Weitz and InstaPundit for the pointer.

[Eugene Volokh,
7:34 AM]
STORY ABOUT THE RUSSIAN ASSAULT ON THE THEATER: It's from The Independent, and it seems much worth reading. (Thanks to Joanne Jacobs for the pointer.)